Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty

Abstract:     
Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to challenge the Countermajoritarian Difficulty, by arguing that legislature-centered arguments do not (simply) extend to cover most of the practice of judicial review. Judicial review includes not merely the review of statutes, but also the review of administrative rules, orders and actions, and the statutory pedigree of these rules, orders and actions does not suffice to "translate" legislature-centered arguments into the administrative state. In particular, there is no reason to think that the most important kind of restraintist argument, for constitutional reviewing courts in an administrative state, should be a democratic argument such as the Countermajoritarian Difficulty. Rather, epistemic arguments -- arguments that point to judicial deficits in determining what morality requires -- are at least as promising.

JEL Classifications: K23

Accepted Paper Series